In its 4-to-3 opinion filed on Agust 13, 2018, the Court of Appeals of Maryland (Maryland’s highest appellate court) addressed the issue of whether a duty of care extends from a medical research institute to a child, who was not a participant in a research study that sought to investigate the effectiveness of lead-based paint abatement measures but who the medical research institute knew resided in a property subject to the research study along with a family member participating in the study, and who was allegedly injured by exposure to lead.
The Maryland Court of Appeals stated that if it found there was a duty of care, then a child who was not a participant in the research study but who the medical research institute knew resided in the property with a participant of the research study, would have an opportunity for recourse in the event of an alleged injury, as the medical research institute would owe that child a duty of care. To prevail, such a person would still need to establish the other three elements of negligence, i.e., a breach of the duty of care, a legally cognizable causal relationship between the breach of duty and the harm suffered, and damages.
The Maryland Court of Appeals held that duty of care exists in limited circumstances where: (1) the medical research institute knows of the presence of the child, who is not a participant in the research study concerning lead-based paint abatement of the property, who resides at the property that is subject to the research study during the participant child’s enrollment in the study; (2) the medical research institute has signed a consent agreement with the parent or guardian for a participant child’s enrollment in the research study and both participant and non-participant children reside at the property subject to the study; (3) the medical research institute knows or should know of the presence or suspected presence of lead in the property; (4) the medical research institute determined the level of lead-based paint abatement for the property; and (5) the non-participant child who resided at the property during the research study was allegedly injured by being exposed to lead at the property.
The Maryland Court of Appeals held that, under the circumstances of the case it was deciding, the medical research institute owed the plaintiff that duty of care under common law based on consideration of seven factors in determining whether the duty exists under common law — namely, foreseeability of harm to the plaintiff, degree of certainty that the plaintiff suffered injury, closeness of connection between the defendant’s conduct and the injury suffered, moral blame attached to the defendant’s conduct, policy of preventing future harm, extent of burden to the defendant and consequences to the community of imposing duty, and availability, cost, and prevalence of insurance for the risk involved.
The Maryland Court of Appeals held that the factors weighed strongly in favor of imposing the duty on the medical research institute and that imposing such duty did not create an indeterminate class of potential plaintiffs.
The Maryland Court of Appeals further held that, reviewing the record in the light most favorable to the plaintiff, and construing against the medical research institute any reasonable inferences that may be drawn from the facts, there was sufficient evidence that the medical research institute had a special relationship with the non-participant child plaintiff to submit the issue to the jury.
Source Kennedy Krieger Institute, Inc. v. Ashley Partlow, No. 82, September Term, 2017.
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